The plaintiffs, Mortimer and Hoffman, have brought this action
against Delta Air Lines for being barred from the defendant's
oversold flight for which they had tickets and confirmed
reservations. They seek an injunction as well as compensatory and
punitive damages. The defendant has moved to dismiss the
complaint for lack of jurisdiction.

(b) No air carrier or foreign air carrier shall
make, give, or cause any undue or unreasonable
preference or advantage to any particular
person * * * in air transportation in any respect
whatsoever or subject any particular person * * * to
any unjust discrimination or any undue or
unreasonable prejudice or disadvantage in any respect
whatsoever.

The statute does not specifically authorize a civil action as a
remedy for violations of its provisions and it is the defendant's
position that none can be implied.

The implication of a civil remedy from the provisions of this
Act has been characterized, and properly so, as a question
regarding the statement of a claim for which relief can be
granted. Yelinek v. Worley, 284 F. Supp. 679 (E.D.Va. 1968);
Moungey v. Brandt, 250 F. Supp. 445 (W.D.Wis. 1966). Both Yelinek
and Moungey were cases in which the amount in controversy
exceeded the jurisdictional requirements of 28 U.S.C. § 1331(a)
and consequently federal question jurisdiction existed in that
the controversy arose under the laws of the United States within
the meaning of that section. Having established an independent
jurisdictional basis here also, the question becomes whether a
civil remedy is available for an alleged breach of a provision of
the Federal Aviation Act. It is the opinion of this Court that
such a remedy does exist.

The implication of a remedy from a regulatory statute is well
known to the law. Steele v. Louisville & Nashville R.R.,
323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Tunstall v.
Brotherhood of Locomotive Firemen & Enginemen, Ocean Lodge No.
76, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Reitmeister
v. Reitmeister, 162 F.2d 691 (2d Cir. 1947); Roosevelt Field Inc.
v. Town of North Hempstead, 84 F. Supp. 456 (E.D.N.Y. 1949);
Neiswonger v. Goodyear Tire & Rubber Co., 35 F.2d 761 (N.D.Ohio
1929). Perhaps the most prolific source of such precedent is
under the securities legislation. However, whether relief should
be granted in a particular case requires the examination of a
number of factors, not the least of which are the intent of
Congress, the availability of alternative remedies, state or
administrative, and the desirability of uniform enforcement.

The legislative history of this Act is of little assistance in
determining whether a private civil remedy was contemplated for
the enforcement of its provisions. The statute itself states that
"[t]here is recognized and declared to exist in behalf of any
citizen of the United States a public right of freedom of transit
through the navigable airspace of the United States," 49 U.S.C. § 1304,
and provides criminal penalties for those who violate
many of its provisions including the one in question. 49 U.S.C. § 1472.
It is further stated that the "promotion of adequate,
economical, and efficient service by air carriers at reasonable
charges, without unjust discriminations, undue preferences or
advantages * * *" are matters within the public interest.
49 U.S.C. § 1302(c).

At least two cases have held that a private civil remedy can be
implied from this section of the Federal Aviation Act. Fitzgerald
v. Pan American World Airways, 229 F.2d 499 (2d Cir. 1956); Wills
v. Trans World Airlines, Inc., 200 F. Supp. 360 (S.D.Cal. 1961).
In Fitzgerald it was held that a complaint alleging racial
discrimination on the part of the defendant airline stated a
claim for which relief could be granted under 49 U.S.C. § 1374.
There, at page 501, the Second Circuit reiterated its statement
in Reitmeister v. Reitmeister, 162 F.2d 691, 694 (2d Cir. 1947):

Although the Act does not expressly create any civil
liability, we can see no reason why the situation is
not within the doctrine which, in the absence of
contrary implications, construes a criminal statute,
enacted for the protection of a specified class, as
creating a civil right in members of the class,
although the only express sanctions are criminal.
(Citations omitted.)

The Wills case was substantially the same as the present case.
There the plaintiff, holding confirmed second class reservations,
was barred from the flight in order to accommodate an excess of
first class passengers. The court allowed recovery of
compensatory and punitive damages.

In both Fitzgerald and Wills the basis for allowing recovery
was that the Act established a public interest and right to
non-discriminatory and fair treatment by air carriers and that in
the absence of a civil remedy past injuries caused by violation
of that right would go uncompensated. Besides criminal sanctions,
the Act provides for the entry of appropriate orders by the Civil
Aeronautics Board, after notice and hearings in any investigation
instituted upon complaint, to compel compliance with the
provisions of the statute. 49 U.S.C. § 1482. The administrative
remedy thus being prospective, it was judged appropriate and
necessary to imply a private civil action, remedial in nature.
The court in Wills stated at page 364:

Without judicial intervention to redress past
violations of the statute, the rights of air
passengers, as declared in the Act, to travel without
undue preference or unjust discrimination would be
robbed of vitality and the purposes of the Act
substantially thwarted. It cannot be presumed,
nonetheless, that the Congress intended no relief for
past infringement of the Federal rights of air
passengers there declared. (Citations omitted.)
Indeed, "where federally protected rights have been
invaded, it has been the rule from the beginning that
courts will be ...

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